Lessly v. Bowie

Citations

• 27 S.C. 193
• 3 S.E. 199
• 1887 S.C. LEXIS 121

Syllabus

<p>1. A claim for improvements cannot be made by defendant in an action for the foreclosure of a mortgage. Such a claim can be made under the betterment laws only after final judgment in an action “for the recovery of lands and tenements.”</p> <p>2. In a sale of land there is no implied warranty: a purchaser, in the absence of fraud, can only protect himself by covenants in writing.</p> <p>3. The general warranty in a deed of conveyance embraces all the covenants formerly used in conveyances of land ; and for a breach of any of them, the purchaser may recover damages by original action, of by way'of counter-claim to an .action for the purchase money.</p> <p>4. An outstanding claim of dower is an encumbrance, but the vendee is not entitled to recover damages therefor as a breach of his warranty until he has extinguished it (and then only to the extent of his payment), or unless he has been thereby evicted.</p> <p>5. Outstanding paramount title to land, in whole or in part, is a breach of the warranty of seizin at the date of the deed, for which, possibly, a court of law would award nominal damages, although there had been no eviction; but such a case furnishes no ground in equity for the rescission of the contract of purchase, and cannot be interposed as a defence to an action for the foreclosure of a mortgage given for the purchase money.</p>